A Court of Appeal decision has been unanimously overturned by the UK’s Supreme Court, finding that an illegal worker does have the right to bring claims for discrimination against their [illegal] employer.
As a starting point, anyone working under an illegal contract is barred from relying on certain contractual or statutory protections that other workers (not working illegally) enjoy. Illegal workers cannot, for example, bring a claim for unfair dismissal – they cannot complain about losing a job unfairly when they had no right to be in that job in the first place. This is a matter of public policy.
However, the recent decision in Hounga v Allen [2014] has made it clear that it is not against public policy to allow illegal workers in certain circumstances to be protected from discrimination by their employers. In this case, Ms Hounga, a Nigerian national, was brought to the UK by Mr and Mrs Allen, (also of Nigerian origin and holding dual British nationality) to work for them as an au pair. She was 14 years old at the time and lied to
the Nigerian and British authorities on oath about her age and status as the couple’s granddaughter. She was granted a visitor’s visa and worked in the Allens’ home
for around 18 months (well after her visa expired) before they dismissed her and threw her out of the house.
Whilst working for them, she was physically abused, denied access to the education they had promised her and was threatened with violence if she ran away. Effectively, Ms Hounga had been trafficked. The definition of trafficking includes: “the recruitment,
transportation, transfer, harbouring or receipt of persons by means of the threat or use of force or other forms of coercion”, and where these methods have been used,
the consent of the victim is irrelevant.
Ms Hounga brought claims for unfair dismissal and race discrimination but the tribunal found that she was barred from bringing unfair dismissal claims because she had
known that she was working illegally. She was awarded £6,000 as compensation for the race discrimination but was not able to recover anything for loss of earnings.
The Employment Appeals Tribunal upheld her decision, agreeing that the discrimination claim was not barred. The Court of Appeal overturned this decision and decided that her complaint was inextricably linked to her status as an illegal worker. Ms Hounga appealed to the Supreme Court, whose decision was unanimous.
The Supreme Court decided that Ms Hounga’s claim could not be defeated by the argument that she was working illegally. Lord Wilson considered that the illegal
contract was: “no more than the context in which Mrs Allen perpetrated the acts of physical, verbal and emotional abuse by which, among other things, she dismissed Miss Hounga from her employment.”
The Court agreed that there were clear public policy reasons to allow the claim to proceed. Preventing Ms Hounga from bringing a claim for discrimination in such circumstances would be completely against the public policy of preventing and sanctioning those involved in human trafficking and in protecting their victims. The Supreme Court did not rule on whether she had been a victim of human trafficking but did state that if she had not been, the distinction between trafficking and what happened to Ms Hounga was so small as to be inconsequential. Had Ms Hounga not been allowed to proceed with her claim, it was felt that this could encourage other unscrupulous employers to enter into illegal contracts and discriminate against illegal workers.
All employers have an obligation to prevent illegal working in their businesses and could be liable to prosecution and significant fines if they fail to comply with this law. Anyone with concerns regarding illegal working and its prevention should seek specialist
employment and immigration advice.
Kate Watson is a solicitor in the employment team at Stephens Scown. She can be contacted on 01872 265100 or by email to rural@stephens-scown.co.uk. Stephens Scown also has a specialist immigration team, who can be contacted on 01392 210700.